Wednesday, June 05, 2013

Litigation Issues

Three litigation matters that have tangential relationships
to the blog’s themes.

First, this morning’s New
York Times reports
that Yale (undisclosed amount) and New Haven ($200,000) have reached a
settlement with James Van de Velde, a former Yale lecturer falsely accused of
murdering a Yale student named Suzanne Jovin,
whose thesis Van de Velde had supervised. Both New Haven and Yale denied any
wrongdoing, though it’s safe to assume that they didn’t fork over six-figure
amounts out of the goodness of their hearts.

In 1998, Van de Velde was a popular
lecturer, but after the allegations was transformed—as the Times notes today—into a “pariah.” Even though
he was never charged with any crime, he was removed from the classroom by
then-Yale dean Richard Brodhead. Justifying his decision in a 1999
interview with New York Times Magazine, Brodhead remarked, “The presumption of innocence is
not a trivial thing.”

Indeed.

Brodhead
demonstrated his commitment to the presumption of innocence not merely by
removing Van de Velde from the classroom, but by informing him that any letter
from Yale would have to mention “the intervening controversy.”

-------------

Second,
as part of its (mercifully unsuccessful) crusade to weaken the First Amendment
protections of all newsgatherers in Maine by forcing me to turn over
confidential, unpublished exchanges with sources, Duke sought to neuter a First
Circuit case called Cusumano
v. Microsoft. The ruling provides substantial protections—along the
lines afforded to journalists—for professors in the First Circuit.

Acting at
the behest of treaty-related demands from Britain, a U.S. government filing
against Boston College threatened to do what Duke could not—undermine Cusumano. The case, which involved oral
histories of former IRA members, began when the professors who conducted the
oral histories did not retain possession of them (such a move isn’t necessarily
uncommon), and instead deposited them in the Boston College library. But initially
BC (unlike
my experience in the Duke case,
or most journalists who receive such subpoenas) didn’t resist a government
subpoena to other oral histories in the collection, which complicated the
case. A district court ordered BC to turn over 85 of the oral histories to the
British government.

On
Monday, the First
Circuit ruled that the district court “abused its discretion in ordering
the production of a significant number of interviews that only contain
information that is in fact irrelevant to the subject matter of the subpoena.”
It substantially narrowed the scope of the subpoena (to 11 oral histories), and
made clear that Cusumano remained
good law in the circuit.

---------------

Finally,
last week came the latest in the Paterno family’s effort to restore the
tarnished reputation of the late Penn State football coach. The family, along
with some family-aligned trustees and former football players, filed suit
against the NCAA. As Yahoo’s Dan Wetzel perceptively
observed, although the NCAA is the named defendant in the lawsuit, a better
title would be “Paterno v. Penn State,” since the suit appears
to flow from the Paterno family’s rage that the current Penn State
administration launched the Freeh Report and then accepted the report’s
findings.

The suit
itself offers no new information, contending instead (as the family and its
representatives have before) that the university should have adopted wildly
counterintuitive interpretations of the evidence that Freeh recovered, or that
the NCAA’s decision to accept the university’s investigation rather than to
conduct its own inquiry violated the late Paterno’s due process.

Federal
courts have strict rules regarding standing. In cases such as the Paterno
lawsuit, plaintiffs must be able to demonstrate some sort of injury that the
courts can redress.

The lawsuit
itself makes two such standing claims. First, that “the Consent Decree [between the
NCAA and Penn State] has interfered with the administration of Penn State, and
limited the faculty’s ability to attract
and retain high-caliber faculty, administrators, staff, and students, which has reduced the value of the faculty’s own positions
and their ability to compete within their
fields.” I’m sure everyone
is eager to hear how NCAA sanctions against the football program have prevented
the school from attracting “high-caliber” professors of hospitality management.

Second,
that “the imposed
Consent Decree is an indictment of the entire Penn State community, including individual institutional leaders,
members of the Board of Trustees, those responsible
for and participants in athletic programs, the faculty, and the student body.
The Consent Decree charges that
every level of the Penn State community created and maintained a culture of reverence for, fear of, and deference to the
football program.”

I’d say
the participation of Professors Bordi, Engelder, Niles, and O’Donnell in this
lawsuit provides a pretty good sign of how at least the academic “level of the
Penn State community created and maintained a culture
of reverence for, fear of, and deference to the football program.”

4 comments:

Anonymous
said...

Faculty claiming status as plaintiffs because their reputations were damaged by a university scandal?

If they can sue on that basis, then how many Duke profs have standing to sue Durham (the DPD) and the state of NC (Nifong) for actions which sullied the reputation of Duke and therefore lowered the value of their reputations and their ability to compete for other jobs?

As a proud alumni member of the Track team at PSU, I can assure you that Coach Groves was never cowed nor an admirer of Coach Paterno. The first thing Coach Paterno did when coach Groves arrived in 1968 was borrow his film projector and never return it. Coach Groves instilled in all of us that no man is any better than any other, especially a track and field athlete. A valuable lesson I learned from a man never in good stead with the Athletics hierarchy at PSU. One of many. Don't judge a PSU graduate with any of your own prejudices. (Not you, KC!) Many of us may surprise you.

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About Me

I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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